Kulesh
Mondal Vs. The State of West
Bengal [2007] Insc
903 (7 September 2007)

2.
Challenge in this appeal is to the judgment rendered by a Division Bench of the
Calcutta High Court upholding the conviction for offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') and sentence of
imprisonment of life awarded by learned Additional Sessions Judge, 2nd Court, Malda
in Sessions Trial No.51/2001.

3.
Background facts in a nutshell are as follows:

On
13.2.1994 round about 2.30
p.m. a young girl
called Bharati Mondal was returning home, carrying a bundle of 'Khari' on her
head. As the 'Khari' struck on the body of the appellant Kulesh Mondal, the
accused Naresh Mondal (acquitted by the High Court) and his brother appellant- Kulesh
Mondal hurled filthy languages at her. Shocked by such behaviour of the
accused, the informant Naren Mondal raised his strong protest. There ensued
bickering amongst them. It was followed by hurling of brickbats at the
informant.

While
such things had been going on, one Chakku Mondal (hereinafter referred to as
the deceased) was passing along the road. He came to the spot to enquire as to
what had been going on there. Finding him there, the accused Naresh Mondal
dragged him to the place of occurrence and his brother appellant Kulesh Mondal
delivered a fatal blow on his neck with a 'Hasua'. The injured Chakku Mondal
having sustained severe injury on his neck, efforts were made to shift him to
the hospital. Unfortunately, the injured succumbed to his injury before his
arrival in the hospital.

With
the informant Naren Mondal reporting the incident with the local P.S. Manikchak
P.S. Case No.10/1994 dated 13/02/1994
under Sections 341/323/302/34 IPC was registered against Kulesh Mondal and
others. Following the inquest over the dead body, the Investigating officer
sent the dead body to the MaldaSadarHospital for post mortem examination. The investigation proceeded in
it usual way with the Investigating officer preparing a sketch map of the place
of occurrence. He also seized blood stained earth, control earth, few pieces of
broken tiles and brickbats, some dry woods and prepared seizure list in
presence of the witnesses.

Subsequently,
the blood stained wearing apparels of the victim were also seized. Despite
raids being conducted, to apprehend the culprits, the accused persons evaded
arrest for a long time. Eventua1ly, they were arrested one after another. The
arrest of principal accused Kulesh Mondal could be made only on 18.6.1994. The
Investigating Officer, in the meantime, examined the available witnesses. The
statement of Bharati Mondal recorded under Section 164 of the Code of Criminal
Procedure, 1973 (in short the 'Cr.P.C.') was collected.

Collection
of the post mortem report was also made. On completion of investigation, charge
sheet was submitted.

Following
the commitment of the case, the learned Additional Sessions Judge framed
charges under Sections 3O2/34, 323/34 and 337/34 IPC against the appellant and
others. The accused persons having pleaded innocence, the prosecution examined
14 witnesses to bring home the charges.

Amongst
the notable witnesses were the eyewitnesses of the occurrence, the witnesses of
the seizure of the incriminating articles, the doctor conducting the post
mortem examination and the officer who investigated the case. The learned
Judicial Magistrate recording the statement of Bharati Mondal was also examined
as a prosecution witness. Placing strong reliance on the statements of the
eyewitnesses and the supportive post mortem report, learned Additional Sessions
Judge convicted the appellant Kulesh Mondal and his brother Naresh Mondal for
commission of offence punishable under Section 302 read with Section 34 IPC.
The trial court found the evidence to be credible and cogent and, therefore,
found the two accused persons guilty of offences punishable under Section 302
read with Section 34 IPC. They were sentenced to rigorous imprisonment for life
and fine of Rs.5000/- each, in default, rigorous imprisonment for six months.
Both the accused persons were, however, acquitted of the charges under Section
323/34 and 337/34 IPC. The four other accused persons namely Radhik Mondal,
Anil Mondal, Uttam Mondal and Dipen Mondal were acquitted, as the materials
against them were not found sufficient enough.

Aggrieved
by the conviction and sentence under Section 302/34 IPC, both the convicted
accused persons jointly preferred an appeal before the High Court.

4.
Before the High Court primary stand was that evidence of relatives should not
have been believed, no material evidence was there to convict accused Naresh Mondal
and in any event Section 302 had no application. High Court did not find any
substance in any of the pleas and dismissed the appeal.

5. In
support of the present appeal learned counsel for the appellant submitted that
the evidence of so-called eye- witnesses cannot be believed as they are related
to the deceased. In any event only single blow was given in the course of
quarrel and, therefore, Section 302 IPC has no application.

6.
Learned counsel for the State on the other hand supported the order.

7. We
may also observe that the ground that the witnesses being close relatives and
consequently being partisan witnesses, should not be relied upon, has no
substance. This theory was repelled by this Court as early as in Dalip Singh
and Ors. v. The State of Punjab (AIR 1953 SC 364) in which surprise
was expressed over the impression which prevailed in the minds of the Members
of the Bar that relatives were not independent witnesses. Speaking through
Vivian Bose, J. it was observed:

"We
are unable to agree with the learned Judges of the High Court that the
testimony of the two eyewitnesses requires corroboration.

If the
foundation for such an observation is based on the fact that the witnesses are
women and that the fate of seven men hangs on their testimony, we know of no
such rule.

If it
is grounded on the reason that they are closely related to the deceased we are
unable to concur. This is a fallacy common to many criminal cases and one which
another Bench of this Court endeavoured to dispel in 'Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find,
however, that it unfortunately still persists, if not in the judgments of the
Courts, at any rate in the arguments of counsel."

8.
Again in Masalti and Ors. v. The State of U.P. (AIR 1965 SC 202) this Court
observed: (p. 209-210 para 14):

"But
it would, we think, be unreasonable to contend that evidence given by witnesses
should be discarded only on the ground that it is evidence of partisan or
interested witnesses....... The mechanical rejection of such evidence on the
sole ground that it is partisan would invariably lead to failure of justice. No
hard and fast rule can be laid down as to how much evidence should be
appreciated. Judicial approach has to be cautious in dealing with such
evidence; but the plea that such evidence should be rejected because it is partisan
cannot be accepted as correct."

9. To
the same effect is the decision in State of Punjab v.

Jagir
Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002 (3) SCC 76). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC
1390), normal discrepancies in evidence are those which are due to normal
errors of observation, normal errors of memory due to lapse of time, due to
mental disposition such as shock and horror at the time of occurrence and those
are always there, however, honest and truthful a witness may be. Material
discrepancies are those which are not normal, and not expected of a normal
person. Courts have to label the category to which a discrepancy may be
categorized. While normal discrepancies do not corrode the credibility of a
party's case, material discrepancies do so. These aspects were highlighted in
Krishna Mochi and Ors. v. State of Bihar etc. (JT 2002 (4) SC 186).

10.
The residuary plea relates to the applicability of Exception 4 of Section 300
IPC, as it is contended that the incident took place in course of a sudden
quarrel.

11.
For bringing in its operation it has to be established that the act was
committed without premeditation, in a sudden fight in the heat of passion upon
a sudden quarrel without the offender having taken undue advantage and not
having acted in a cruel or unusual manner.

12.
The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The
said exception deals with a case of prosecution not covered by the first
exception, after which its place would have been more appropriate. The
exception is founded upon the same principle, for in both there is absence of
premeditation. But, while in the case of Exception 1 there is total deprivation
of self-control, in case of Exception 4, there is only that heat of passion
which clouds men's sober reason and urges them to deeds which they would not
otherwise do.

There
is provocation in Exception 4 as in Exception 1; but the injury done is not the
direct consequence of that provocation.

In
fact Exception 4 deals with cases in which notwithstanding that a blow may have
been struck, or some provocation given in the origin of the dispute or in
whatever way the quarrel may have originated, yet the subsequent conduct of
both parties puts them in respect of guilt upon equal footing. A 'sudden fight'
implies mutual provocation and blows on each side. The homicide committed is
then clearly not traceable to unilateral provocation, nor in such cases could
the whole blame be placed on one side. For if it were so, the Exception more
appropriately applicable would be Exception 1. There is no previous
deliberation or determination to fight. A fight suddenly takes place, for which
both parties are more or less to be blamed. It may be that one of them starts
it, but if the other had not aggravated it by his own conduct it would not have
taken the serious turn it did. There is then mutual provocation and
aggravation, and it is difficult to apportion the share of blame which attaches
to each fighter. The help of Exception 4 can be invoked if death is caused

(a) without
premeditation,

(b) in
a sudden fight;

(c) without
the offender's having taken undue advantage or acted in a cruel or unusual
manner; and

(d) the
fight must have been with the person killed.

To
bring a case within Exception 4 all the ingredients mentioned in it must be
found. It is to be noted that the 'fight' occurring in Exception 4 to Section
300 IPC is not defined in the IPC. It takes two to make a fight. Heat of
passion requires that there must be no time for the passions to cool down and
in this case, the parties have worked themselves into a fury on account of the
verbal altercation in the beginning. A fight is a combat between two and more
persons whether with or without weapons. It is not possible to enunciate any
general rule as to what shall be deemed to be a sudden quarrel. It is a
question of fact and whether a quarrel is sudden or not must necessarily depend
upon the proved facts of each case. For the application of Exception 4, it is
not sufficient to show that there was a sudden quarrel and there was no
premeditation. It must further be shown that the offender has not taken undue
advantage or acted in cruel or unusual manner. The expression 'undue advantage'
as used in the provision means 'unfair advantage'.

13.
Where the offender takes undue advantage or has acted in a cruel or unusual
manner, the benefit of Exception 4 cannot be given to him. If the weapon used
or the manner of attack by the assailant is out of all proportion, that
circumstance must be taken into consideration to decide whether undue advantage
has been taken. In Kikar Singh v. State of Rajasthan (AIR 1993 SC 2426) it was
held that if the accused used deadly weapons against the unarmed man and struck
a blow on the head it must be held that giving the blows with the knowledge
that they were likely to cause death, he had taken undue advantage.

14.
Considering the background facts in the light of the principle set out above,
the inevitable conclusion is that Exception 4 to Section 300 IPC is applicable
and the offence is relatable to Section 304 Part I and not Section 302 IPC.
That being, so the conviction is altered. Custodial sentence of 10 years would
meet the ends of justice.